NO. WR-82,876-01

IN THE COURT OF CRIMINAL APPEALS

EX PARTE BRYAN ELLIOTT PALMBERG, 

APPLICANT

On Application for Writ of Habeas Corpus in Cause No. 1121345-A, 

Challenging the conviction in Cause No. 1121345, 

From the 179th Judicial District Court of Harris County, Texas 

APPLICANT’S BRIEF 

Oral Argument Requested ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 NICOLAS HUGHES

 Assistant Public Defender 

Harris County, Texas 

TBN: 24059981 

1201 Franklin St., 13th Floor 

Houston, Texas 77002 

Phone: (713) 368-0016 

Fax: (713) 437-4316 

nicolas.hughes@pdo.hctx.net 

 

ATTORNEY FOR APPLICANT

WR-82,876-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/23/2015 2:59:15 PM

Accepted 7/23/2015 3:27:49 PM

ABEL ACOSTA

CLERK
ii

IDENTITY OF PARTIES AND ATTORNEYS

APPLICANT: BRYAN ELLIOTT PALMBERG

TRIAL PROSECUTOR: STACY SEDERIS

Assistant District Attorney

Harris County, Texas

1201 Franklin Street, 6th Floor

Houston, Texas 77002

ATTORNEY AT TRIAL: HEATHER HALL

Attorney at Law

308 N Main St

Conroe, TX 77301-2810

PRESIDING JUDGE AT TRIAL: HON. J. MICHAEL WILKINSON

179th District Court 

Harris County, Texas

1201 Franklin Street, 18th floor

Houston, Texas 77002

ATTORNEY FOR STATE ON HABEAS: INGER CHANDLER

Assistant District Attorney

Harris County, Texas

1201 Franklin Street, 6th Floor

Houston, Texas 77002

ATTORNEY FOR APPLICANT: NICOLAS HUGHES

Assistant Public Defender

Harris County, Texas

1201 Franklin St., 13th Floor

Houston, Texas 77002
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS .............................................................................II

TABLE OF CONTENTS............................................................................................................III

INDEX OF AUTHORITIES ........................................................................................................V

STATEMENT OF THE CASE ..................................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT...................................................................... 1

ISSUE PRESENTED................................................................................................................... 2

STATEMENT OF FACTS............................................................................................................ 2

SUMMARY OF THE ARGUMENT.............................................................................................. 2

ARGUMENT.............................................................................................................................. 3

I. Applicant’s plea of guilty was involuntary when he was not aware at the 

time of his plea that the field test for controlled substances conducted by the 

police officer did not leave enough evidence for the drug lab to conduct its own 

testing. ................................................................................................................................ 3

A. Presumptive field tests for narcotic identification are inherently unreliable, 

inadmissible at trial, and cannot support a conviction for possession of a 

controlled substance ................................................................................................... 4

1. Presumptive field tests are simplified, cheap tests that can be performed 

under the conditions a law enforcement officer is likely to encounter .......... 4

2. Presumptive field tests are inappropriate for use beyond an initial 

determination of “probable cause”..................................................................... 4

3. Both this Court and the Texas legislature have deemed the results of a 

presumptive field test, even when coupled with the testimony of an 

experienced law enforcement officer, inadmissible and insufficient to 

support a conviction ............................................................................................. 5

a. Under Curtis, unspecific presumptive drug field tests are insufficient to 

support a conviction ....................................................................................... 5
iv

b. Presumptive drug field tests performed outside a laboratory are 

inadmissible under Article 38.35 of the Code of Criminal Procedure...... 6

B. The admission of inadmissible evidence against a defendant has been 

repeatedly held to be a basis for relief...................................................................... 8

1. To a defendant who is deciding whether or not to plead guilty, a 

laboratory report indicating that no analysis could be performed is 

equivalent to laboratory report indicating that no controlled substance could 

be detected ............................................................................................................. 8

2. Strong parallels can be drawn between Applicant’s claims in this case and 

claims of Brady violations, ineffective assistance of counsel, actual 

innocence, and the presentation of false evidence.......................................... 10

a. A defendant is entitled to relief where his conviction is secured 

through use of false evidence....................................................................... 10

b. A defendant is entitled to relief when new evidence, discovered after a 

person’s guilty plea, reveals that that defendant is innocent.................... 11

c. A defendant is entitled to relief when his lawyer inexcusably fails to 

investigate evidence material to a defendant’s guilty plea ........................ 12

d. Brady entitles a defendant relief when the State failed to disclose 

material, exculpatory information prior to a guilty plea ........................... 13

e. A defendant should entitled to relief if he can prove that newly 

discovered evidence shows the evidentiary foundation underlying his 

conviction is invalid....................................................................................... 14

PRAYER .................................................................................................................................. 15

CERTIFICATE OF SERVICE.................................................................................................... 16

CERTIFICATE OF COMPLIANCE ........................................................................................... 16
v

INDEX OF AUTHORITIES

Federal Cases

Brady v. Maryland, 373 U.S. 83 (1963) ................................................................................. 13

Hill v. Lockhart, 474 U.S. 52 (1985)..................................................................................... 12

McCarthy v. United States, 394 U.S. 459 (1969) ..................................................................... 9

Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) .................................................................... 12

Murray v. Carrier, 477 U.S. 478 (1986)................................................................................. 15

State Cases

Burch v. State, No. 05–10–01389–CR, 2012 WL 2226456 (Tex. App.−Dallas June 18, 

2012) (mem. op., not designated for publication)........................................................... 6

Cude v. State, 588 S.W.2d 895 (Tex. Crim. App. 1979) ..................................................... 13

Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977)................................................5, 6, 9

Ex parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006) ............................................ 10

Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) .........................................11, 14

Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)............................................. 11

Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) ....................................... 14

Ex Parte Hodges, No. WR–80,680–02, 2015 WL 376201 (Tex. Crim. App. Jan. 28, 

2015) (mem. op., not designated for publication)......................................................... 13

Ex parte Imoudu, 284 S.W.3d 866 (Tex. Crim. App. 2009).........................................12, 13

Ex parte Kimes, 872 S.W.2d 700 (Tex. Crim. App. 1993) ................................................. 13

Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014)................................................... 9

Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) .............................................. 15
vi

Ex Parte Morton, No. AP–76663, 2011 WL 4827841 (Tex. Crim. App. Oct. 12, 2011) 

(mem. op., not designated for publication).................................................................... 12

Ex Parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011).............................................. 14

Ex parte Rodriguez, No. WR-61899-03, 2008 WL 2673789 (Tex. Crim. App. July 2, 

2008) (mem. op., not designated for publication)......................................................... 11

Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002).................................................. 12

Houston v. Indiana, 553 N.E.2d 117 (Ind. 1990)................................................................... 4

Milam v. State, No. AP–76379, 2012 WL 1868458 (Tex. Crim. App. May 23, 2012) 

(mem. op., not designated for publication)...................................................................... 8

New York v. Swamp, N.E.2d 774 (1995)................................................................................ 5

Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011)...................................................... 10

State Statutes

TEX. CODE CRIM. PROC. ANN., art. 11.073 (West 2013)................................................. 11

TEX. CODE CRIM. PROC. ANN., art. 38.35 (West 2005). ............................................6, 7, 9

Other Authorities

Alan Harris, A Test of a Different Color: The Limited Value of Presumptive Field Drug Tests 

and Why That Value Demands Their Exclusion from Trial, 40 SW. L. REV. 531 (2011)..... 4

Kirk M. Grates, et al., Conclusion of Validation Study of Commercially Available Field Test 

Kits for Common Drugs of Abuse, National Forensic Science Technology Center (2008)

............................................................................................................................................... 5

U.S. Patent. No. US 3,955,926 (Issued May 11, 1976) ...................................................... 4
1

STATEMENT OF THE CASE

On June 17, 2007, Applicant was charged with possession of substance in 

penalty group 1, less than one gram (cocaine) in Cause 1121345. Writ Exhibit 1.On 

June 19, 2007, pursuant to a plea agreement, Applicant pled guilty and was convicted. 

Writ Exhibits 2, 3. Applicant has collaterally challenged his conviction on the grounds 

that his plea was involuntary and that Applicant’s conviction violates his right to due 

process. On February 10, 2015, the trial court entered agreed findings of fact and 

conclusions of law recommending relief. Agreed Findings of Fact and Conclusions of Law, 

Ex parte Palmberg, No. 1121345-A (179th Dist. Ct. Harris Cty., Tex. 2015) (filed Feb. 

10, 2015). After Applicant’s case was remanded to the trial court for additional 

findings, on May 19, 2015, the trial court entered agreed supplemental findings of fact 

and conclusions of law recommending relief. Agreed Supplemental Findings of Fact and 

Conclusions of Law, Ex parte Palmberg, No. 1121345-A (179th Dist. Ct. Harris Cty., Tex. 

2015) (filed May 19, 2015).

STATEMENT REGARDING ORAL ARGUMENT

Oral argument may help categorize Applicant’s case within the body of caselaw 

regarding involuntary pleas. Applicant requests oral argument with the belief that it 

can simplify the question before the court and can help harmonize the resolution of 

Applicant’s case with existing caselaw.
2

ISSUE PRESENTED 

Applicant’s plea of guilty was involuntary when he was not aware at the time of his 

plea that the field test for controlled substances conducted by the police officer did 

not leave enough evidence for the drug lab to conduct its own testing.

STATEMENT OF FACTS 

On June 17, 2007, Applicant was arrested for possession of substance in 

penalty group one, less than one gram (cocaine). Writ Exhibit 1. On June 19, 2007, 

just two days later, Applicant pled guilty and was sentenced to 180 days in the county 

jail. Writ Exhibits 2, 3. On September 14, 2009, years after Applicant’s initial arrest 

and conviction, Houston Police Department laboratory analysts examined the 

evidence in Applicant’s case and determined that there was no remaining sample that 

could be tested using laboratory equipment. Writ Exhibit 4, Supplemental Writ 

Exhibit 2. Without forensic analysis by an accredited laboratory, the evidence in 

Applicant’s case was inadmissible in Court. Supplemental Conclusion of Law No. 8. 

Had Applicant know that the results of the presumptive drug test kit were 

inadmissible in court and there was no competent evidence to secure his conviction, 

he would have insisted upon his right to trial. Supplemental Conclusion of Law No. 

16-18.

SUMMARY OF THE ARGUMENT

This Court has previously held that the result of a presumptive drug test kit, 

even when coupled with the testimony of an experienced policeman, is insufficient to 
3

support a conviction for possession of a controlled substance. Additionally, Article 

38.35 of the Code of Criminal Procedure deems inadmissible most forensic analysis, 

including controlled substance identification, when conducted outside of an 

accredited laboratory. Due to a lack of unconsumed sample, a forensic analysis could 

not be performed in this case. The presumptive drug test kit in this used case, 

therefore, was inadmissible.

The presumptive drug test kit served as the evidentiary basis for Applicant’s 

arrest and ultimate conviction. Applicant’s plea agreement was based on the 

fundamental assumption that there was enough to legally support a verdict, an 

assumption both material to the case and which turned out to be false. This Court 

should grant relief on the basis that Applicant’s due process rights were violated or on 

the basis of involuntary plea, as there was demonstrably insufficient evidence to 

support Applicant’s conviction, a fact revealed only after the conviction occurred.

ARGUMENT

I. Applicant’s plea of guilty was involuntary when he was not aware at 

the time of his plea that the field test for controlled substances 

conducted by the police officer did not leave enough evidence for the 

drug lab to conduct its own testing.
4

A. Presumptive field tests for narcotic identification are inherently 

unreliable, inadmissible at trial, and cannot support a conviction for 

possession of a controlled substance

1. Presumptive field tests are simplified, cheap tests that can be 

performed under the conditions a law enforcement officer is likely to 

encounter

The development of the quick-acting reagents used in presumptive field tests 

attempted to address the need for a rapid and reliable test enabling law enforcement 

to combat the trade and consumption of narcotics. U.S. Patent. No. US 3,955,926 

(Issued May 11, 1976). Presumptive drug test kits are designed to be “employed by 

‘field’ personnel without scientific or laboratory skills for making quick decisions such 

as whether probable cause exists.” Houston v. Indiana, 553 N.E.2d 117, 120 (Ind. 1990).

“However, even guides created for [presumptive drug test kits’] proper usage state 

that the tests are only designed for the ‘preliminary identification of drugs of 

abuse.’ ” Alan Harris, A Test of a Different Color: The Limited Value of Presumptive Field 

Drug Tests and Why That Value Demands Their Exclusion from Trial, 40 SW. L. REV. 531, 

532 (2011).

2. Presumptive field tests are inappropriate for use beyond an initial 

determination of “probable cause”

One of the greatest limitations of most presumptive drug test kits is a lack of 

specificity: not only may a number of controlled substances demonstrate a positive 
5

result, but over the counter drugs and other substances can demonstrate a false 

positive result. Kirk M. Grates, et al., Conclusion of Validation Study of Commercially 

Available Field Test Kits for Common Drugs of Abuse, National Forensic Science 

Technology Center (2008). This limitation was recognized by this Court almost four 

decades ago. See Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977). While a 

presumptive test may be important for developing probable cause against a defendant, 

at trial where the standard of proof is “beyond a reasonable doubt,” more than a field 

test must be conducted. New York v. Swamp, N.E.2d 774, 777–778 (1995).

3. Both this Court and the Texas legislature have deemed the results of a 

presumptive field test, even when coupled with the testimony of an 

experienced law enforcement officer, inadmissible and insufficient to 

support a conviction

a. Under Curtis, unspecific presumptive drug field tests are 

insufficient to support a conviction

In Curtis, the Court of Criminal Appeals held that the results of a Marquis 

reagent presumptive field test were inadmissible, as they were not specific:

A Marquis reagent test which is positive does not prove a substance is 

heroin. Brown correctly testified that it was merely evidence that the 

substance was an opiate derivative. There are at least twenty-five organic 

substances that can be extracted from opium; morphine, codeine and 

paregoric are among these substances. 

Curtis, 548 S.W.2d at 59. The Curtis Court further explained that an officer was not 

qualified to distinguish between chemicals by mere physical inspection:
6

This Court has held that an experienced officer may be qualified to 

testify that a certain green leafy plant substance is marihuana. [...]

However, we are unwilling to say that an experienced officer can look at 

a white or brown powdered substance and testify that it is heroin since 

morphine, codeine, paregoric, other opiates, other controlled substances, 

and noncontrolled substances also appear in white or brown powdered 

form. A green leafy plant substance which is marihuana has different 

characteristics from other green leafy plant substances; an expert can 

determine the difference. The evidence here does not show that even the 

experienced expert can distinguish one white or brownish powdered 

substance from another and determine which is heroin.

Id. The Curtis court determined that the balance of the evidence, absent testimony 

from a laboratory analyst, was insufficient to support Curtis’s conviction. Id. The rule 

set forth in Curtis remains vital today. Burch v. State, No. 05–10–01389–CR, 2012 WL 

2226456, *6–7 (Tex. App.−Dallas June 18, 2012) (mem. op., not designated for 

publication) (holding that where laboratory report was inadmissible due to a 

Confrontation Clause problem, the law enforcement officer’s testimony about the 

nature of the white substance involved in that case was also inadmissible).

b. Presumptive drug field tests performed outside a laboratory are 

inadmissible under Article 38.35 of the Code of Criminal Procedure

The rule set forth in Curtis is bolstered by the Texas Code of Criminal 

Procedure. Article 38.35 of the Code of Criminal Procedure1provides that 

 

1 Article 38.35 applies to any “chemical [...] test performed on physical evidence, [...]

for the purpose of determining the connection of the evidence to a criminal action” 

regardless of whether the test is performed by a “laboratory or other entity that 

conducts a forensic analysis subject to this article.” TEX. CODE CRIM. PROC., art. 

38.35(a)(1), (a)(4) (emphasis added). Presumptive tests are considered forensic analysis 

unless “performed for the purpose of determining compliance with a term or 
7

admissibility of forensic evidence is predicated on the analysis of the evidence by an 

accredited laboratory:

[A] forensic analysis of physical evidence under this article and expert 

testimony relating to the evidence are not admissible in a criminal action 

if, at the time of the analysis, the crime laboratory conducting the 

analysis was not accredited by the director under Section 411.0205, 

Government Code

TEX. CODE CRIM. PROC., art. 38.35(d)(1). Forensic analysis is broadly defined by the 

statute:

“Forensic analysis” means a medical, chemical, toxicologic, ballistic, or 

other expert examination or test performed on physical evidence, 

including DNA evidence, for the purpose of determining the connection 

of the evidence to a criminal action.

TEX. CODE CRIM. PROC., art. 38.35(a)(4). As presumptive drug field test is a chemical 

test performed on physical evidence for the purpose of determining whether a 

substance may be a controlled substance, and is therefore evidence that the crime of 

possession of a controlled substance may have occurred, it is a forensic analysis. Id. As 

explained by this Court, Article 38.35 “makes the admissibility of some forensic 

evidence [including presumptive field tests] contingent on whether the analysis of the 

evidence was conducted at an accredited laboratory.” Milam v. State, No. AP–76379, 

2012 WL 1868458, 12 (Tex. Crim. App. May 23, 2012) (mem. op., not designated for 

 

condition of community supervision or parole” and performed by or under contract 

with state parole departments or community supervision and corrections departments.

TEX. CODE CRIM. PROC., art. 38.35(a)(4)(E).
8

publication). No laboratory analysis was conducted in this case, and there is no 

admissible proof that Applicant possessed a controlled substance.

B. The admission of inadmissible evidence against a defendant has been 

repeatedly held to be a basis for relief

1. To a defendant who is deciding whether or not to plead guilty, a 

laboratory report indicating that no analysis could be performed is 

equivalent to laboratory report indicating that no controlled substance 

could be detected

Procedurally and functionally, in terms of legally admissible evidence, there is no 

difference between a case involving a sample reported not to contain a controlled 

substance and a sample which cannot be tested by a laboratory. In both cases, the 

defendant is likely to have been arrested based on a presumptive field test.2 At the 

point the defendant has been arrested, she has been told by a law enforcement officer 

that the substance tested positive for a controlled substance. A defendant’s guilty plea 

is always contingent, whether the defendant believes she is guilty or not, on whether 

the defendant believes that the State can prove to a factfinder that the substance in 

question is in fact a controlled substance. In Ex parte Mable, this Court held that the 

 

2 Many Texas cases explore the link between presumptive field tests and the 

development of probable cause to justify an arrest or a search. See e.g. State v. Davila, 

No. 03-06-00214-CR, 2007 WL 542603 (Tex. App.-Austin Feb. 23, 2007, no pet.) 

(mem. op., not designated for publication); Hall v. State, No. 07-01-0014-CR, 2001 WL 

1090133 (Tex. App.-Amarillo Sept. 18, 2001, no pet.) (mem. op., not designated for 

publication); Bright v. State, No. 04-99-00912-CR, 2001 WL 55723 (Tex. App.-San 

Antonio Jan. 24, 2001, no pet.) (mem. op., not designated for publication).
9

defendant’s belief that the substance contained illegal drugs is critical to the decision 

to plea:

In this case, all parties involved, including the applicant, incorrectly 

believed the applicant had been in possession of drugs. This fact is 

crucial to this case, and while operating under such a misunderstanding, 

the applicant cannot be said to have entered his plea knowingly and 

intelligently. 

Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014).

Until there has been a forensic laboratory analysis of a suspected controlled 

substance, there is no evidence sufficient to establish that a particular chemical sample 

is any particular substance. Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977); 

TEX. CODE CRIM. PROC., art. 38.35(d)(1). The standard for evaluating a claim of 

involuntary plea is “whether the plea is a voluntary and intelligent choice among the 

alternative courses of action open to the defendant.” Ex parte Mable, 443 S.W.3d at

131. The distinction between whether a laboratory tests a substance and determines 

the substance not to contain any controlled substance and whether the laboratory 

cannot perform a test is purely academic to a rational defendant: in neither case can 

law enforcement testimony or the presumptive test be used as evidence to secure a 

defendant’s guilt. Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977); TEX.

CODE CRIM. PROC., art. 38.35(d)(1). No rational defendant, positively knowing that 

the State cannot prove every element in a criminal prosecution, would plead guilty to 

an offense. McCarthy v. United States, 394 U.S. 459, 466 (1969).
10

2. Strong parallels can be drawn between Applicant’s claims in this case 

and claims of Brady violations, ineffective assistance of counsel, actual 

innocence, and the presentation of false evidence

Applicant’s claims revolve around the disclosure of evidence, material to 

Applicant’s case, after Applicant had already pled guilty. Several other constitutional 

claims related to a defendant’s right to a fair trial, including claims of ineffective 

assistance, Brady violations, actual innocence, and the presentation of false evidence, 

can also involve disclosures of evidence occurring after trial. A common theme 

among all these types of cases is focusing on whether the revealed evidence is material 

to a defendant’s trial, and whether the result of the trial is called into question by the 

new evidence:

The mere possibility that an item of undisclosed information might have 

helped the defense, or might have affected the outcome of the trial, does 

not establish ‘materiality’ in the constitutional sense. Hence, the 

defendant must show that, in light of all the evidence, it is reasonably 

probable that the outcome of the trial would have been different had 

[there been] a timely disclosure.

Pena v. State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011) (citations omitted).

a. A defendant is entitled to relief where his conviction is secured 

through use of false evidence

The presentation of false evidence, whether or not the prosecution is aware 

that the evidence is false, violates a defendant’s right to due process. Ex parte Carmona, 

185 S.W.3d 492, 496–497 (Tex. Crim. App. 2006). In Ex parte Chabot, a co-defendant’s 
11

testimony was critical to establishing that Chabot, acting alone, sexually assaulted and 

shot the deceased. Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App. 2009). 

However, a DNA test revealed that the co-defendant, and not Chabot, had sexually 

assaulted the deceased. Id. This Court concluded that the new evidence deeply 

undercut the State’s evidence and the perjured testimony from the co-defendant 

deprived Chabot of his due process rights. Id. at 772. This Court seemed to 

acknowledge that it is possible that fabricated evidence could result in an involuntary 

guilty plea. See Ex parte Rodriguez, No. WR-61899-03, 2008 WL 2673789 (Tex. Crim. 

App. July 2, 2008) (mem. op., not designated for publication) (defendant claiming, in 

part, his plea involuntary due to use of fabricated evidence against him). 

b. A defendant is entitled to relief when new evidence, discovered 

after a person’s guilty plea, reveals that that defendant is innocent

Even if a defendant receives a perfectly procedurally fair trial, due process may 

require the invalidation of a conviction when new, contradictory evidence is received 

by the court. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996); TEX.

CODE CRIM. PROC., art. 11.073. This Court has held,

[P]unishment of an innocent person violates the Due Process Clause of 

the United States Constitution. Consequently, if applicant can prove by 

clear and convincing evidence to this Court, in the exercise of its habeas 

corpus jurisdiction, that a jury would acquit him based on his newly 

discovered evidence, he is entitled to relief. 

Ex parte Elizondo, 947 S.W.2d at 209. “[This] policy applies with no less force when 

the conviction is obtained by a bench trial or guilty plea.” Ex parte Tuley, 109 S.W.3d 
12

388, 392 (Tex. Crim. App. 2002). A defendant’s due process rights are not frozen in 

time at the point of trial; perhaps decades after a person’s conviction, due process may 

require contemplation of whether, in light of new evidence, a defendant’s conviction 

is fundamentally unfair. See e.g. Ex Parte Morton, No. AP–76663, 2011 WL 4827841 

(Tex. Crim. App. Oct. 12, 2011) (mem. op., not designated for publication).

c. A defendant is entitled to relief when his lawyer inexcusably fails to 

investigate evidence material to a defendant’s guilty plea

Where a defense team inexcusably fails to investigate material evidence, even 

where the evidence is not a bar to prosecution against a defendant, a violation of the 

defendant’s constitutional rights may occur. See e.g. Miller v. Dretke, 420 F.3d 356 (5th 

Cir. 2005). Furthermore, the right of effective assistance of counsel is not 

extinguished by the decision to plead guilty. Hill v. Lockhart, 474 U.S. 52, 58 (1985). In 

Ex parte Imoudu, this Court considered whether or not a lawyer’s failure to investigate 

a psychiatric report rendered a defendant’s plea involuntary. Ex parte Imoudu, 284 

S.W.3d 866 (Tex. Crim. App. 2009). The Court noted that the failure to investigate 

the report amounted to a denial of the defendant’s constitutional rights:

Thus, we feel that counsel had a duty to investigate the possibility that 

Applicant was insane at the time of the offense given the likelihood of 

mental illness noted in reports from jail medical personnel. Instead, 

counsel failed to even obtain Applicant's medical records. If they had, it 

would have been clear from even a cursory reading of the documents 

that Applicant was suffering from some mental problems while he was 

incarcerated. This leads us to conclude that counsel was ineffective for 

failing to investigate whether Applicant was insane at the time of the 

offense. 
13

Ex parte Imoudu, 284 S.W.3d 866, 870 (Tex. Crim. App. 2009).. Denial of effective 

assistance of counsel is a cousin of procedural due process claims, as ineffective 

assistance of counsel deprives a defendant of a fair trial. See Cude v. State, 588 S.W.2d 

895, 897–898 (Tex. Crim. App. 1979). 

d. Brady entitles a defendant relief when the State failed to disclose 

material, exculpatory information prior to a guilty plea

The watershed Supreme Court case Brady v. Maryland established that the 

suppression of important evidence could violate a defendant’s right to due process 

and entitled the defendant to a new trial:

We agree with the Court of Appeals that suppression of this confession 

was a violation of the Due Process Clause of the Fourteenth 

Amendment.

[...]

We now hold that the suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the 

evidence is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution. 

Brady v. Maryland, 373 U.S. 83, 87 (1963). Often, the substance leading to a Brady claim 

is not known at the time of trial, consequently Brady claims are cognizable on habeas 

corpus. See Ex parte Kimes, 872 S.W.2d 700, 701 n. 2 (Tex. Crim. App. 1993). The 

failure to disclose Brady material may render a plea involuntary. See e.g. Ex Parte Hodges, 

No. WR–80,680–02, 2015 WL 376201, 1 (Tex. Crim. App. Jan. 28, 2015) (mem. op., 

not designated for publication)..
14

e. A defendant should entitled to relief if he can prove that newly 

discovered evidence shows the evidentiary foundation underlying his 

conviction is invalid

There is little to distinguish “perjured, fabricated, false, or even just plain 

misleading evidence” from one another, if the ultimate effect of the evidence is the 

same. Ex Parte Robbins, 360 S.W.3d 446, 464 (Tex. Crim. App. 2011) (J. Price, 

concurring). Indeed, this Court has made it clear that a “gap in the evidence” may 

“creat[e] a misleading impression of the facts” so great that it may violate a 

defendant’s right to due process. Ex parte Ghahremani, 332 S.W.3d 470, 479, 481 (Tex. 

Crim. App. 2011). A due process violation is not made palatable in the absence of bad 

faith or misconduct, rather it depends on the likelihood that the misleading evidence 

contributed to a defendant’s conviction or punishment. Ex parte Chabot, 300 S.W.3d at

772. Here, all parties were operating under the mistaken assumption that there was 

evidence that could be forensically analyzed by a laboratory in Applicant’s case. This 

misunderstanding was fundamental to Applicant’s decision to plea and to the 

outcome of Applicant’s case. The same hesitation to uphold a conviction that is a 

product of a lawyer’s failure to uncover important information, the suppression of 

evidence, or of missing evidence which later exonerates an innocent person should 

give this Court pause in this context. 

Due process ensures that “the prisoner must always have some opportunity to 

reopen his case if he can make a sufficient showing that he is the victim of a 
15

fundamental miscarriage of justice.” Murray v. Carrier, 477 U.S. 478, 515 (1986) (J. 

Stevens, concurring). No competent lawyer, knowing that the police officer’s 

testimony regarding the evidence in Applicant’s case and knowing that the 

presumptive drug field test was inadmissible would advise their client to plead guilty. 

See Ex parte Bryant, 448 S.W.3d at 40. No rational defendant, having been adequately 

apprised that there was no admissible evidence which could sustain a conviction 

under Texas’s controlled substance act, “would not have pleaded guilty and would 

have insisted on going to trial.” Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. 

App. 1997). If the State had possession of the laboratory report at the time of 

Applicant’s plea or even if the defense lawyer had simply failed to investigate an 

existing lab report, Applicant would have a clear avenue for relief. The question of 

timing should not govern the ultimate disposition of Applicant’s case when the 

materiality of the evidence not disclosed to the defendant and its impact on his 

decision-making process is the ultimately the basis for relief.

PRAYER

Applicant prays that this Court grant relief and remand his case to the trial 

court for a new trial.

Respectfully submitted,

ALEXANDER BUNIN

Chief Public Defender

Harris County Texas 

 /s/ Nicolas Hughes
16

NICOLAS HUGHES

Assistant Public Defender 

Harris County Texas 

1201 Franklin Street, 13th Floor

Houston Texas 77002

(713) 368-0016

(713) 386-9278 fax

TBA No. 24059981

nicolas.hughes@pdo.hctx.net

CERTIFICATE OF SERVICE

I certify that a copy of this Applicant’s Brief (Palmberg) has been served upon the 

Harris County District Attorney's Office – Conviction Integrity, on July 23, 2015 by 

electronic service.

/s/ Nicolas Hughes

 NICOLAS HUGHES

Assistant Public Defender 

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the page 

and word count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains 

3,540 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).

/s/ Nicolas Hughes

 NICOLAS HUGHES

Assistant Public Defender